Is the 10-Year Bar for Real and Could It Stop Me from Getting My Green Card?

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

Many people have written us skeptical or not sure of the danger of the 3- and 10-year bars. Admittedly, these bars seem somewhat abstract or theoretical, and it can be difficult to grasp how they could affect oneself. Some people have asked how is it that people who are already in the U.S. “cannot get their papers here.” Well, that’s the way the law currently is. It was passed in 1996 as a way of penalizing people who came here illegally or who came legally but overstayed their visas for at least 6 months. The penalty was that these people could not get their papers here but must travel back to their home countries to do so. However, as soon as they set foot outside the U.S., they are subjected to these bars when they try to apply legally to return to the U.S. within 3 or 10 years.

With that in mind, it was quite nice that a reader of this blog recently commented and shared her experience with the 10-year bar. Her story was quite sobering, and we thought it has a little bit of everything that we’ve been blogging about, so we wanted to share it with you to show how this bar could wreak havoc on people’s dreams of living in the U.S. We’ve edited some of the original language to make it easier to read:

Hi Guru,
I came to USA on a tourist Visa in 1994 July. Got married to a green-card holder then in 1997 October. My husband applied I-130 for me in October 1997 and it was approved. I went with a friend of mine to the immigration in 1998 and I was inquiring for employment authorization and that’s where I was caught. I was released couple of hours later and reported to them every month. Appeared before the judge in Sept. 1998 and granted voluntary departure. The judge gave me 120 days which will expire on December 31, 1998. I was waiting for my husband’s swear in coz he had his citizenship interview. Since it did not take place in time I had to leave USA on 30th December 1998. I did not overstay the 120 days given by the judge.

OK, this lady had an I-130 petition filed for her by her green-card holder husband in 1997, then went to the Immigration Office to try to apply for an employment authorization document (EAD, or work permit) and got caught. Why? Doesn’t having an approved I-130 entitle you to a work permit?

The answer is most of the times no, not at all. When the husband filed the I-130 in 1997 for her, that placed her into the F2A category of spouses and children of green-card holders. At that time in 1997, people in that category had to wait something like 4 years for a visa number to be available. However, as we’ve shown elsewhere, without a visa number available, one cannot get a work permit. So, in 1998, when she went to the local Immigration office to inquire (and most likely apply) for the work permit, she was not entitled to one yet. At that time, we know she was out of status because it had been 4 years since she came to the U.S. on the tourist visa (in July 1994) and no tourist visa lasts 4 years. The act of going to the Immigration office made them aware of her presence in this country as being out-of-status. Therefore, they detained and released her but ordered her to appear in front of a judge in removal proceedings!

This shows that people who are out-of-status in the U.S. should proceed extremely carefully when trying to apply for something with Immigration here without consulting a lawyer. The lady here presumably did not do so, or got bad advice that she could qualify for a work permit, and made the mistake of applying for it. That’s how Immigration discovered that she had overstayed her tourist visa by 3 or 4 years.

What about the husband becoming a citizen, wasn’t that supposed to help her? Well, no, not unless he was approved for naturalization and was sworn in on time. In removal proceedings, the judge only gives the alien a couple of continuances at most, a good lawyer could get even more. If, after the continuances, the alien still does not have any form of relief available, then the judge cannot keep delaying the case and either will order removal or allow the alien the privilege of voluntary departure. Voluntary departure allows the person to leave the U.S. cleanly without having a removal or deportation against them on their records, and the maximum time given is 120 days to leave. IF the husband had been sworn in as a citizen in time while the lady was still in removal proceedings, then she would have converted from the F2A category to the immediate relative category, and a visa number would have been immediately available to her. Then she could have applied to the judge for her green card without having to leave the U.S.!

But, unfortunately, as she stated, “I was waiting for my husband’s swear in coz he had his citizenship interview. Since it did not take place in time, I had to leave USA on 30th December 1998.” So, because her husband did not become a citizen quickly enough, she indeed had to leave the U.S. within the 120-day period granted by the judge.

Her story then continues:

I went back to Malaysia and remained there since January 1st 1999. In May 1999 my husband became us citizen and he applied for immigrant visa for me and I had the interview on May 2000 and was denied because of overstay and it was a 10 year bar. I appealed and was rejected the I-601. The 10 year bar starts from the day I left USA. I left on 30th December 1998 and i have already completed the 10 year which is 30th December 2008.

So, back in Malaysia, after her husband had become a U.S. citizen, a visa number immediately became available for her. She naturally then tried to apply for the immigrant visa to return permanently to the U.S. She first was denied her visa due to the consulate’s finding that she overstayed previously by about 4 years on her prior tourist visa. Then, she filed the I-601 to try to apply for the extreme hardship waiver. However, this was also denied. Because of this, she could not get back to the U.S. legally, and had to wait 10 years from the date she left the U.S. before she could apply again! How could this happen, you might ask, since she got voluntary departure?

Well, voluntary departure at least prevented a removal order from being on her records, which would have been worse. However, the truth of the matter is that, receiving a grant of voluntary departure while in removal proceedings in court did nothing to erase the more than one year of unlawful presence that she had accumulated in the U.S. before starting her court proceedings. Thus, she became subjected to the 10-year bar as soon as she stepped foot outside the U.S. That’s how strict this bar is. The timing was particularly unlucky because not long after she left the U.S. on December 30, 1998, her husband became a citizen, and she became qualified for a visa to return to the U.S. But, unfortunately, at the consulate interview in Malaysia, the bar was invoked against her, as you can see, and so she had to wait 10 long years until December 30, 2008 to reapply.

Note: Some people are under the mistaken impression that this 10-year bar is only applicable if there was a removal (deportation) order against them. Not true! This 10-year penalty for being unlawfully present in the U.S. at least one year (either by overstaying one’s visa that long or being here illegally when one has no visa) kicks in no matter how one departs the U.S., even if it is voluntarily!

In any event, this lady’s heartfelt story above shows that there are real immigrants out there everyday who simply cannot “get their papers” here, but must return to their countries to do so. And, when they do that, they may be stuck in their countries for 10 years before being allowed to return, as happened with this lady. Having paid her dues, she is now in the process of reapplying again through her citizen husband, and should get approved easily this time since the 10 years have already passed with her being outside the United States. This is a real story. It is a story multiplied by thousands of times. For the sake of unification of families, let us hope that Congress will remove these bars from the law as soon as possible.

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you. To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

68 Responses to “Is the 10-Year Bar for Real and Could It Stop Me from Getting My Green Card?”

Comments or questions related to the blog post you’ve just read can be left in the “Leave a Reply” box below. HOWEVER: All comments or questions regarding your or family member’s immigration situation and seeking info or advice on what to do next will be ignored unless you contact us for a paid consultation here: paidconsult@guruimmigration.com. By doing so, please expect a quote for the price of the consultation with the Guru, Attorney Doan.

We must implement this policy due to the volume of inquiries and emails received from this blog. We can only respond in the comments section below to general questions that seek clarification of a point made in the blog post above in a general way.

I have submitted a I-130 petition for my spouse, and have done all the procedures for NVC. I am about to send my package of all financial(AOS) and supporting documents to NVC to receive the Interview date. My question is, if my husband has received a denial on a tourist visa and a 10 year bar will it automatically turn into a denial at his interview, or does the immigration officer have the final say?

Not sure what you are asking exactly, but as my article above stated, the 10-year bar is real and there’s no if or but or discretion about it. That’s why it’s a bar. The consulate officer at the end of the interview must apply the law as it is and deny the case if the bar still applies. Also, don’t know when your husband received the denial of his tourist visa so not sure if the bar still applies or if the 10-year period is already gone.

The good news is that even after the 10-year bar results in denial, information will be given to your husband by the officer to do a waiver. It won’t be easy, but a professionally prepared waiver has a far better chance of succeeding.

It’s pointless to worry at this juncture about the 10-year bar and the extreme hardship waiver to waive the bar if you still have to wait a few more years in Stage 2 for a visa number to become available (unless the petition was for an immediate relative). As explained in the article above: get the Guru (or another lawyer) to handle the extreme hardship waiver for you, if you have a qualifying relative. Otherwise, there’s no chance. The waiver is only handled in Stage 3 after that Stage 2 wait. Read our other article, “I-130 Approval Is Not Green Card!” to understand what we mean by Stages 2 and 3.

Hi Guru, got a quick question, I’m 20 and got caught working in the US with a Tourist visa, they took my info and fingerprints and got put “On the Bus” back to Mexico, they never told me my status or anything, they only asked me if I had any problem going back to Mexico and I said no. I guess the 10-year bar may also apply here but just want to make sure.

I don’t know for sure and I’m not allowed by the Guru to answer questions like this involving a possible deportation. You would have to ask the Guru to see if the 10-year bar applies. Obviously you violated your status when you started working on that tourist visa, they don’t have to tell you anything about your status! (kind of redundant to tell you anything when they put you on that bus back to Mexico). See “OUR INFO & CONTACT” for how to do a paid consultation with the Guru himself.

I have a question, just graduated college and im originally from russia (russian citizen). I came to america just to check things out but overstayed my visa (tourist visa)becoming illegal (2 yrs). I actually now got a job teaching in Korea and i have the opportunity to gain korean citizenship in five years and will give my my russian citizenship. I would love to come to america afterwards and actually do the proper paperwork to gain legal rights to work. could i come back into america in five years with a korean passport being a korean citizen? or would they bar me anyways?

Rand, this doesn’t quite make sense and is somewhat confusing. The 10-year bar due to a person’s unlawful presence in the US for a year or more (which is the subject of this article) does not operate against a child under 18. Besides, there is NO bar “placed” on the child or any other alien if they stay in the US and never leave. Nobody “places” the 10-year bar on the alien like a pair of handcuffs; it operates automatically on its own triggered by what action the alien takes, namely, leaving the U.S. What you may be talking about, we are speculating, is that the child (you) was ordered removed (deported) from the US when he was 10 years old, but that is another kind of 10-year bar. That is the bar after a removal order.

This is why, except for extremely simple stuff, it’s not productive for us to answer comments on this blog. Our answers always seem to create more questions in the original issue the questioner wants to be answered, which muddles up the whole issue more than before, which necessitates a consultation. You, like your mother, should consult with us to get the complete truth to your situation.

I was charged with alien smuggling and was placed in exclusion proceedings while I was in the US. I would like to know how long I am banned from entering the US. Also, I left the US voluntarily and I have been living in my home country Macedonia for the past six years.

With petitions from my father and my brother could I ever get my greencard?

Since 1997 there have not been exclusion proceedings (only removal proceedings), so if what you say is true, it must have been prior to 1997. You might have called it by the old term even if you actually were going through removal proceedings as an arriving alien. But if you were already admitted to the U.S. you could not have been in exclusion proceedings but only in removal proceedings. Therefore, only a consultation with an attorney could clear up all the confusion about what type of proceedings you went through. In any event, only an attorney’s help could help you get a waiver of the alien smuggling inadmissibility ground. We do accept all credit cards or Paypal for an email consultation, even though you are in Macedonia.

Well I entertered the US in 1994 so that term was used at the time. I just want to know as an alien smuggler am I banned from entering the US and for how long?? Does it help that I had a voluntarily departure?

Also, what are the chances of getting my greencard through my fathers and brothers petitions?

“Well I entertered the US in 1994 so that term was used at the time.” So the Guru was correct that it was prior to 1997.

You were asked to do a paid consult with us in the previous response. We do not provide free legal advice as stated on this blog, only legal information, since we cannot be responsible for something that goes wrong when the information you give us is very incomplete here. Since you’re in Macedonia, we realize it may not be convenient to call, so email us at consult@GuruImmigration.com. We will describe to you the payment options then.

Im 20 years old and my mom applied for my resident card 5 years ago. A few days back i recived a lettler saying that my case still current but i have to pay the 70$ fee so they can send the pappers to my country, now we ask and im not qualify for Child Protection Act because of a formula that i couldnt understand, but here is my question I came to the US with a visa but i overstay in the US now that my visa number will be available on June 2010 i going to have to go back to my country but I’m affraid to go back and they wont accept my waiver. What do you recomend me to do? GO back to my country and take the risk?
PS: My mom will naturalize on november 2010 but i will turn 2010 on December 2010. She made the pettion with I-130

Yes, the Child Status Protection Act is not easy. However, as we replied to you back on Oct. 28 or so, we cannot provide you free advice on here, especially something so important as the decision to risk going back to apply or not. We will be happy to do a paid consultation with you. Please call 310.289.2155 or email us: consult@GuruImmigration.com.

Mr. Doan does speak pretty good Spanish. But it’s more important that he converse with you anyway, since you’re the beneficiary, and you seem to be very informed and up to date on your own priority date and the details of the I-130 petition. Or, he could do a written consultation by email. We will send you details by private email.

so how would i be able to get back to the us, should i wait 10years and then try again? How do i know how long the overstay bar is… there might not be any bar right? Is there any site that you could look up any bars by name or passport number?

We have already answered your question and are somewhat puzzled as to why it’s so hard to understand when it’s all there in the three articles you read. Anyone who overstayed at least a year in the U.S. like yourself has a 10-year bar against them, not 2 years, not 3 years, not 8 years. It’s 10 years from the date of departure from the U.S., period. Yes, you have to wait (if you don’t qualify for a waiver), just like that lady from Malaysia in the article. That’s why it’s called a bar — it’s a penalty for overstaying — a serious matter, overstaying is not a joke. The bar is applied by the consulate official when he or she interviews you and finds out that you overstayed — you can’t hide that fact — they can easily see from your departure date and prior visa records. Any new visa will not be approved if you apply within the 10 years. It’s very simple. If you would like us to explain this in more details and step by step, it’s best to contact our office for a paid consultation: Phone: (310)289-2155 or email: Lawyer@GuruImmigration.com.

I have a green card and I’m in the process of getting my citizenship, my fiance got a voluntary deportation on February of 2009 because he overstayed here but he left on time and has a clean records. So, I would like to know If I can start the waiver process now or should I wait for my citizenship and also if i can file for the waiver as fiance or we need to be married ?

Voluntary departure is the correct term. He may not even need a waiver, depending on how long he was out-of-status prior to being in removal proceedings. Also, if the waiver is needed, it’s only filed at the time of the consulate interview, at the final stage of immigrating. We cannot cover the subject here due to time and lack of information; you’d have to contact our office for a paid consultation. But, to be frank with you, you’re way ahead of yourself. You’re only a resident and can only file an I-130 for him (only if you’re married to him, an LPR can never help a fiance) and it will be a few more years before there’s even a visa number for him to immigrate (see “I-130 Approval Is Not Green Card!”). It’s simply too early to talk about doing a waiver. Unless you become a citizen, which will speed up the process. Call us at 310.289.2155 or email at Lawyer@GuruImmigration.com to schedule the consultation.

Hi Mr Guru, thank you for your helpful answers.
I got married to a Us citizen an submited my AOS on oct 1997,i did not go to the interview because of problemes with my wife,latter we got back together, we moved to a differente state , my father got sick in nov 2003 and i had to leave the states.
Do i have 10 years bar by abandoning my AOS.
Can i reuse my I-130 if it’s was approved back then( we are still married).
Best regards.

It’s really very simple: any alien who leaves the U.S. after having been out of status for more than 180 days total, will get the bar applied to them the moment they set foot outside the U.S. After your AOS was denied for abandonment, you lived here unlawfully for several more years until 2003. So, yes, the 10-year bar to lawful admission continues to apply to you now (until 2013).

does the immigration see (on their screen) when i left the country the last time, i left with austrian airlines from jfk… is it something that shows up right away, or do they have to search their database??? also how do they know when i left the country, since i was working with a p3 visa i didnt give any paper back as i left…?? i am going to try to enter with my visa waiver (new passport so they cant see my old p3visa) from canada with bus.. wish me luck! lol…

my recipt time oct 27 2005 4. pre >bro and sister (how many years more )??i have expired visa????.am in usa almost 12 years even when i entered usa i always paying my tax its good or nothing will change for my status when i 130 aproved.

It’s unclear if you are the petitioner or the beneficiary on the I-130. Assuming you are the beneficiary, it will be a few more years until the I-130 for you is approved and then another wait of years for a visa number. Read “I-130 Approval Is Not Green Card!” to understand the process. However, even in that future time when a visa number is available for you, with an expired visa, you most likely will not be able to adjust your status to green card here since you’re not an immediate relative but must go back home to do that and will get the 10-year bar against you. Read “Who Can Adjust Their Status to Green Card Here?” to understand the process.

When we came to America it was the year 1998. 4 years ago my brother became an American Citizen. He applied for us for- I130. He applied when we were illegal immigrants. In the I130 document it shows our comming: in date as illegal aliens. I didnt understand what you wrote. Aren’t we going to be able to get our green card from my brother?. And the I130 approved?. (when the visa number gets available?) We came here but we applied for this when we were illegal immigrants. Again its only been 4 years. If we stay in America to wait for the visa to be available can we not get the visa? or green card?.If its not like that why did they approve my brothers petition?

When we came to America it was the year 1998. 4 years ago my brother became an American Citizen. He applied for us for- I130. He applied when we were illegal immigrants. In the I130 document it shows our comming: in date as illegal aliens. I didnt understand what you wrote.

Why didn’t you say you were illegal before in your original question? If you came illegally, that is, crossing the border without a visa, you don’t qualify for green card here, simple as that. Unless your brother petitioned for you on or before April 30, 2001, which he obviously did not. Read the article “I’m Illegal, I Can Still Get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend?” to see why illegals don’t qualify (that article deals more with marriage cases but the same thing applies for brothers/sisters who came illegally to the U.S.)

If its not like that why did they approve my brothers petition?

Which petition? Your brother’s petition for you, or the petition by another relative or a company for your brother a long time ago that led to his green card? If your brother came with a visa then he could have gotten a green card here. If he came illegally, but because he came a long time ago, he might have gotten an I-130/I-140 petition filed for him on or before April 30, 2001 and so got the green card here. On your brother’s petition for you now though, again, I-130 Approval Is Not Green Card!

If you still want clarification, you would have to get a paid consultation by contacting our office at 310.289.2155 or Lawyer@GuruImmigration.com.

My Father recently Got us citizenship after that he is apply Immigrant I130 visa for our marrierd son age over 21 he is live in india,when i check my case status on USCIS website my case status is acceptance but showing on Inisitial review, can you pls tell us What is means,and how long time i have to wait for get US visa,Pls reply me

My Father recently Got us citizenship after that he is apply Immigrant I130 visa for our marrierd son age over 21 he is live in india…

If “my father” is petitioning for “our married son,” then is the son your father’s grandson? Or is the married son who lives in India your brother? Confusing. Anyway, “initial review” just means exactly that — it may take a few years to even get the I-130 approved. You should go back to USCIS’s website and look up the average processing time for that particular category at the appropriate USCIS Service Center where the I-130 is at just to get it approved. Then, the beneficiary in India has to wait until a visa number is available. Read “I-130 Approval Is Not Green Card!” to understand the process.

is the prossesing times faster now or same? .i 130 brother and sister case. time for turkish how many years :)visa will come avaliable.???petitoner us citizen my brother and i have expired visa.and we got mail i-765 c notice my case is jurisdiction over to transfered new servis center from vermont to nebraska its good news or bad news.and one more question we dont have change without the i 130 approve for adjustmant status i understand ,am i wrong?i m praying for amnesty but poor has no luck i belived .:((((((((.new president uscis looking hope full.

is the prossesing times faster now or same? .i 130 brother and sister case. time for turkish how many years :)visa will come avaliable.???

For the answer as to when a visa number will be available you can look it up yourself in the Visa Bulletin, as is shown in “I-130 Approval Is Not Green Card!” No one can predict precisely at any given point in time because things change in the future so easily. One can say today, “Oh, right now it looks like it will be 4 more years until a visa number is available in your category for your priority date for your particular country,” but then 2 years from now, that category become super-slow (or super-fast) and so the prediction becomes meaningless.

“we dont have change without the i 130 approve for adjustmant status i understand” Read “Who Can Adjust Their Status to Green Card?” to see who can adjust status to green card in the U.S. without being forced to leave. It was explained in that article that no one can even try to file their adjustment of status until a visa number is available (when their priority date becomes current).

i overstayed my p-3 visa about a year, i then left on my own, nobody contacted me about having to leave, i just decided to leave on my own.. i want to return to the us, some people tell me that i could take the chance, maybe if i am lucky they wont see the overstay with my new passport (im gonna try to enter with visa waiver) what are my chances o getting in to the country again.. also is there any way to check if i have a bar?? my case is a little bit complicated cause of a lawyer i used to have, wich turned out wasnt even a real lawyer.. he messed up all my papers.. i got a one year permision for the p3 visa, when i went to my country they only gave me 2 months at the embassy… thats also one of the reasons i overstayed, i thought i had one year visa but my passport said 2 months.. my passport is british, do you think i will have any problems with the waiver??

Yes, you are subject to the 10-year bar. It’s not “registered” somewhere yet, but you became subjected to the bar automatically when you left the U.S. The bar comes into effect when you try to apply for admission back to the U.S. if the consulate officer (upon applying for a new visa) or the inspector upon entry finds out or deduces from your documents that you had overstayed your P-3 by a year or more. The key question is “if” but you should always the truth, of course, when asked about the exact dates you were present in the U.S. At the airport, the inspector when inspecting you on visa waiver may or may not see from the stamps inside your passport that you had overstayed previously. You will take a chance, the only way is to try.

i now have a new passport, i lost my old passport which had my old visa, my new passport is brand new, will it show up on the computer when i left the country??? should i tell them i overstayed 1 year?? or should i tell them i left on time??? it has only been 5 months since i left the us, is it better to try and re enter now, or is it better if i wait a little longer???
also another question my fiance is a perminent resident, can he petition for me with a i601 form??? he has not done taxes yet since he got hes greencard this year.. ty

should i tell them i overstayed 1 year?? or should i tell them i left on time???

On this blog we cannot give you advice other than saying that you should always tell the truth, since you don’t know what records Customs and Border Protection at the airport already have on you. They may already have something that show you overstayed and you wouldn’t want to lie then.

also another question my fiance is a perminent resident, can he petition for me with a i601 form???

The I-601?? Where did you get that idea? First of all, the petitioner uses the I-130 form to petition for a relative, not an I-601. The I-601 is a form to waive grounds of inadmissibility (such as the one-year overstay) and is used, like the lady in the article you just read, during the final stage of getting the green card overseas or during adjustment of status. You are far from even at that stage if you marry a green-card holder since there is no visa number available for several years. You seem to be confused about the whole process like that lady was prior to being removed from the U.S. and that could really hurt you. Read “What to Look for When Your Green-Card Holder Helps You Immigrate” and “I-130 Approval Is Not Green Card!” to understand the fairly long waiting time involved before you could immigrate to the U.S.

I left the USA after living there are an illegal immigrant for 6 years. During those six years i was going to school on and off. I would say in total i went to school for 6 semesters. If i were to provide the immigration embassy with my school transcripts, how long do i have to wait inorder to come back to the USA.

Not sure what your American school transcripts would have anything to do with a new visa (perhaps relevant on a new F-1 visa) but as was shown in the article, you have a 10 years wait from the date of your last departure from the U.S., unless the consulate in Canada grants you an extreme hardship waiver based on hardship to a U.S. citizen or legal resident spouse or parent, which is not easy.

I am a naturalized citizen and just learned of the 10 year bar (which would apply for my fiance). I would like to know what would happen if my fiance decides to go back to his country of origin and wait until his 10 years are completed, and if during that time frame an amnesty were to occur will he still have to complete the 10 years or will he also be granted the amnesty?

Should i give up ! I am engaged to be married, he has been married then ended up divorced. Came to the US on a visitor pass, then married a US women. The process was on the way, he received a social security number and working visa. Then a divorced took place. During the figthing process and filling process. He was given a 10 year bar, while refilling in the US they used the time against him.(illegal stay) He returned back to his country volutary , we have been engaged for over 3 years now and lived together for 4 in the usa lived apart for a year or so. We postponed the marriage due to complication in the usa laws against 10 year bars.We finally decided to marry, i will travel to his country to marry him. I am sad that i will have to choose to leave my country and move to his country. I am endanger due to terriots attacks and the haterd towards americans.So should i put my self in harms way because a 10 year Bar. What can i do to fight back! Very disappointing when my own country makes me decided to choose the love of my life or the life i live in the USA!

Melissa, I’m not sure what you mean by being in “harm’s way,” other than the fact that your fiance might not successfully get a waiver on the 10-year bar and join you to live in the U.S. For a professional opinion on his chances of success on getting the waiver, please call my office at 310.289.2155 for a paid consultation. Other than that, all I can say here is that with strong facts of hardship to the U.S. spouse, the waiver can be approved, but each individual case is different.

How about those who overstayed for 4 months (less than 180 days), and left the US. Will they still get hit with the 3 year bar when they process their Immigrant Visa at the US Embassy in their home country?
Thank you.

Obviously, a visa number has to be available first (which could be several years) if the spouse is an LPR, before the final step of applying for an immigrant visa could be done. The prior overstay is a factor but not too serious of a factor if the visa is approvable otherwise in all respects.

My husband came into this country illegally more than 5 years ago. Since then, we had gotten married and had a child. Shortly after he came here ilegally, his father filed a I-130 (around 2003) and it was approved a little more than 3 years later..after we had been married for atleast one year, but before the baby. He is now waiting on word for his Visa interview date in his home-land of Mexico, which now I know that he should not attend due to your informative post, that is unless I don’t want to see him for another ten years. My question is, do we have any options because Iam a citizen? I read above that if the woman’s husband had been a citizen before she had to leave the country, that she would be considered an immediate relative category, and been grated a visa rather quickly. Can this be a possibility in my husband’s case?

No, the woman in my article above originally came to the U.S. with a visa and that was a key difference that would have allowed her to adjust her status here with no problem through her citizen husband (if he had been a citizen soon enough). On the other hand, any person who came to the U.S. illegally, like your husband, cannot adjust their status here. If he’s been illegal a year or more in the U.S. he is subjected to the 10-year bar if he leaves. His is the exact situation described in my article, “I’m Illegal, I Can Still Get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend?” Unfortunately, there is no relief for people like him currently, unless he wants to risk the 10-year bar.

I HAVE A QUESTION, I AM A PERMENANT RESIDENT SINCE MAY 22 2008.. I AM NOW IN EUROPE, I HAVE READ SOME STUFF ONLINE STATING THAT AS A P.RESIDENT YOU HAVE TO BE IN THE STATES 6 MONTHS OUT OF THE YEAR… I JUST WANT TO KNOW WHEN THEY START COUNTING THE TIME, IS IT 1JAN EVERY YEAR?? OR IS IT 6 MONTHS FROM THE TIME YOU LEAVE THE COUNTRY??? ALSO I DID NOT DO TAXES THE FIRST YEAR ,I WAS PLANNING ON DOING TAXES THIS YEAR AND ALSO INCLUDE LAST YEARS INCOME… I DIDNT REALLY KNOW THE RULES.. I AM PLANNING ON RETURNING TO THE US BEFORE THE 6 MONTHS, CAN THEY STILL GIVE ME A PROBLEM AT JFK??

For the future, please do not post all caps on here. It makes it hard to read and, honestly, it seems like you’re shouting.

The length of the trip is what matters, not the calendar year (don’t know where you’ve heard about the January 1st thing). Generally, the legal permanent resident (LPR) can travel and be readmitted with the same green card as long as it’s a less than one-year trip, and as long as sufficient ties to the U.S. have been maintained, i.e. nothing to show the inspector that ties to the U.S. as a resident here have been cut. A six-month trip or less should not be a problem.

The six-month rule you’ve heard about has to do with preserving residence in the U.S. for naturalization purposes; it’s got nothing to do with being readmitted after a trip overseas as an LPR. Generally, an LPR’s tax matters are not asked about by the inspector at the airport, but crimes committed in the U.S. are.

A great article once again from you, Guru Larry. You have been very helpful to all of us. The information you’re giving us will help us understand what immigration law really is. That 10 year bar is really scary. I still have to figure out how to prevent that from happening to me.